Sultan and 3 Others Vs State of U.P.and Another — Allahabad HC (2020) — LawSathi Research

Sultan and 3 Others Vs State of U.P.and Another — Allahabad HC (2020) — LawSathi Research

What the court decided

AI extract

Outcome

Application disposed of at the stage of hearing itself: cognizance order dated 26.02.2019 and all other consequential orders passed thereafter on the charge-sheet set aside; Magistrate concerned directed to pass a fresh order on the charge-sheet in light of the settled principle of law. Disposed of without issuing notice to the private opposite party, who may approach the Court for recalling of the order if aggrieved (para 7).

Issue for consideration

Whether cognizance taken on 26.02.2019 on a charge-sheet filed only for the offence under Section 323 IPC - a non-cognizable offence - was valid, in view of Section 2(d) Cr.P.C. and Chapter XV Cr.P.C.

Court's answer

The offence under Section 323 IPC is a non-cognizable offence.

Ratio / Principle

Cognizance could not be taken on a charge-sheet submitted only for the offence under Section 323 IPC; the provisions of Section 2(d) Cr.P.C. and Chapter XV Cr.P.C. are attracted in such a matter.

Key takeaways

The Magistrate took cognizance on 26.02.2019 without considering the nature of the offence for which the charge-sheet was submitted.ratio¶11
The cognizance taken vide order dated 26.2.2019 on the charge-sheet submitted for the offence under section 323 IPC is liable to be set aside.ratio¶12

Detailed headnote1 paragraphs

Quashing (S. 482 Cr.P.C.) - cognizance on charge-sheet under S. 323 IPC - FIR was lodged for offences under Ss. 323/324 IPC but, on investigation, charge-sheet was filed only for the offence under S. 323 IPC - S. 323 IPC is a non-cognizable offence; cognizance on such a charge-sheet could not be taken, the provisions of S. 2(d) Cr.P.C. and Chapter XV Cr.P.C. being attracted - Magistrate took cognizance on 26.02.2019 without considering the nature of the offence for which the charge-sheet was submitted - cognizance order dated 26.02.2019 and all consequential orders set aside; Magistrate directed to pass a fresh order on the charge-sheet in light of the settled principle of law - matter disposed of at the stage of hearing without notice to the private opposite party, with liberty to seek recall of the order (Om Prakash-VII, J.; order dated 13.1.2020).

Court No. - 74

Case :- APPLICATION U/S 482 No. - 47235 of 2019

Applicant :- Sultan And 3 Others Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Akanksha Gaur Counsel for Opposite Party :- G.A.

Hon'ble Om Prakash-VII,J.

Supplementary affidavit filed today is taken on record.

Heard Ms. Akanksha Gaur, learned counsel for the applicants and learned A.G.A. for the State.

Looking to the nature of the case, the present matter is being disposed of at this stage itself without issuing notice to the private opposite party. However, if he feels so aggrieved, he may approach this Court for recalling of this order.

The present 482 Cr.P.C. application has been filed to quash the charge-sheet dated 20.01.2019 and cognizance order dated 26.02.2019 as well as entire proceeding of Case No. 130 of 2019 (State Vs. Sultan and others) arising out of Case Crime No. 0011 of 2019, under Section 323 I.P.C., Police Station Rabupura, District Gautam Budh Nagar pending in the court of Civil Judge (Jr. Division), Gautam Budh Nagar.

Submission of learned counsel for the applicants is that although FIR was lodged in the matter for the offence under Section 323, 324 IPC yet after investigation, Investigating Officer concerned submitted charge sheet for the offence under Section 323 IPC. Referring to the nature of the offence under Section 323 IPC and provisions of Section 2(d) Cr.P.C. as well as provision provided under Chapter XV Cr.P.C., learned counsel for the applicants argued that cognizance could not be taken on the charge-sheet for the aforesaid offence.

Learned A.G.A. could not dispute the submission advanced on behalf of the applicants.

Since, in this matter, initially FIR was lodged and matter was investigated and the concerned investigating officer submitted charge-sheet only for the offence under section 323 IPC. Perusal of the record shows that the Magistrate concerned without considering the nature of the offence for which charge-sheet was submitted, took cognizance on 26.02.2019. Offence under sections 323 IPC is noncognizable offence. Cognizance could not be taken on the chargesheet for the aforesaid offence, as provisions of Section 2 (d) Cr.P.C. and Chapter XV of the Cr.P.C. will be attracted in this matter.

Having regard to the facts and circumstances of the case, hearing the parties and going through the nature of the offence under section 323 IPC as well as provisions of Section 2 (d) Cr.P.C. and Chapter XV of the Cr.P.C., this Court is of the opinion that cognizance taken vide order dated 26.2.2019 on the charge-sheet submitted for the offence

under section 323 IPC is liable to be set-aside.

Thus, application is disposed of at this stage itself setting aside the cognizance order dated 26.02.2019 and all other consequential orders passed thereafter on the charge-sheet with the direction to the Magistrate concerned to pass a fresh order in light of the settled principle of law on the charge-sheet.

Copy of the order be sent to the court concerned immediately for compliance.

Order Date :- 13.1.2020 Sanjeet